LexisNexis Podcast of Jonathan Mook on EEOC's Notice of Proposed Rules to Amend Current Americans with Disabilities Act RegulationsPosted October 20, 2009Interview Conducted by Steve Berstler

On this edition, Jonathan Mook of DiMuro Ginsberg, PC, in Alexandria, Virginia on the EEOC's notice of proposed rulemaking to amend its current ADA regulations to take into account the changes of the ADA Amendments Act of 2008. Jonathan R. Mook is a partner with DiMuro Ginsberg, PC, in Alexandria, Virginia, where his practice includes general litigation and counseling employers in all aspects of employment law. Mr. Mook is the author of two legal treatises on the Americans with Disabilities Act, ADA: Employee Rights and Employer Obligations, and ADA: Public Accommodations and Commercial Facilities, both published by LexisNexis Matthew Bender.(Editor's Note: This transcription was partially edited.)

Jonathan Mook: I thank you for inviting me to talk about one of my favorite topics, which is the ADA and now the ADA Amendments Act, and taking it one step further, the EEOC's Notice of Proposed Rulemaking to Promulgate Regulations to Implement the Provisions of the ADA Amendments Act of 2008.

Berstler: Can you talk a little bit about the thrust of the EEOC's proposed regulations?

Mook:Well let me step back a minute and just talk a little about the ADA Amendments Act. As most listeners probably know, in September of 2008, the ADA Amendments Act was signed into law by then President Bush. It took effect January 1st, 2009. The new statute, in general, broadly defines the term disability and sets forth rules of construction to broadly implement the definition of disability. Now, the ADA Amendments Act also contains a provision to require that the EEOC have the authority to promulgate regulations to implement the statute. So, on September 23, 2009 of this year, the EEOC published in the Federal Register what's called a Notice of Proposed Rulemaking to implement its regulations that would conform to the ADA Amendments Act. And this starts the public regulatory process for promulgating regulations for the EEOC.

Now, a little bit about those proposed regulations. Basically the EEOC's regulations carry out the thrust of the ADA Amendments Act which is to—I think in a nutshell—broaden and fundamentally alter the way the ADA had been analyzed in the past in terms of who is and who is not covered under the statute, and, as a result of the changes, both in the ADA Amendments Act and in the EEOC's proposed regulations, to greatly broaden the number of persons who will find protection under the statute.

Berstler: Could you go through some of the highlights of the EEOC's proposed ruling making?

Mook: First, the EEOC has included new rules of construction for interpreting the ADA, which will provide the broadest coverage permitted under the new ADA Amendments Act. And some of those rules of construction would include a provision that the focus of the ADA should be on whether discrimination has occurred, not on whether someone meets the definition of disability. Also, the determination of whether someone is disabled is to use a common-sense analysis of disability.No longer will the person's physical or mental impairment need to prevent or significantly restrict the performance of a major life activity, as the rule previously was in place under the old ADA. That's before the ADA Amendments Act was passed last year. So the basic thrust of the new regulations and the rules of construction that the EEOC sets forth are to implement that broad scope of construction of who is to be covered under the ADA and the broad scope of construction for the definition of disability.

Berstler: Obviously a much broader scope, to be sure.

Mook: Right.

Berstler: What other changes to the existing regulations are being contemplated by the EEOC's proposed rules?

Mook: I think a significant one is that in conformity with the ADA Amendments Act, the EEOC's proposed regulations will set forth a statutory list of what constitutes major life activities, and that is quite broad. The original statute, the ADA, did not have a list of major life activities. The ADA Amendments Act sets forth such a list as including performing manual tasks, seeing, hearing, eating, walking, standing, lifting—activities such as that. The EEOC proposed regulations include some major life activities not mentioned in the ADA Amendments Act, which include interacting with others. For a number of years the courts have been debating whether interacting with others constitutes a major life activity. The EEOC's proposed regulation says it is. That will have an impact on the analysis of whether or not someone with a psychiatric or psychological impairment will be covered under the ADA because often times someone who may have such a mental impairment, the effect of that may be to have some type of inhibition or prevention of their ability to interact well—play well with others, to use a different term. And now the EEOC, in its proposed regulations, has said that interacting with others will be a major life activity and one that should be considered.

The EEOC's proposed rules, also in conformity with the ADA Amendments Act, expand the concept of what constitutes a major life activity. Not only will it constitute the outward activities that you or I may observe someone engaging in—as I mentioned before, seeing, hearing, sleeping, walking, things like that—but now, in conformity with the ADA Amendments Act, major life activities will also include major bodily functions, such as functions relating to the immune system, cell growth, digestive functions, bowel functions, neurological functions or brain functions. These are the inward major life activities that all of us engage in.Although you may not be able to observe that on an outward basis, inwardly these are major life activities that the ADA Amendments Act listed.Now with the EEOC's proposed regulations, they will follow those provisions of the ADA Amendments Act. So, again, that's another major change to the way in which the analysis of who is and who isn't covered under the ADA occurred in the past.

Berstler: It's almost as if it included everything you could possibly think of?

Mook: I think that is probably true. One thing I should mention with major bodily functions is it does include the reproductive function, although I think it will remain in debate as to whether or not engaging in sexual relations constitutes a major life activity. Neither the ADA Amendments Act nor the EEOC went so far that engaging in sex constitutes a major life activity, although it did list reproductive functions.

This has been an issue for the courts, and a number of courts, including the DC circuit, have said that engaging in sexual relations is a major life activity. So, potentially, this is an issue that the Supreme Court is going to need to address at some point in the future. I look forward to that oral argument.

Berstler: And it will be a packed Supreme Court, no doubt.

Mook: I think that is a fair assumption to make.

Berstler: Are there other areas in which the EEOC has proposed expanded coverage under the ADA?

Mook: Yes, one is—as practitioners probably know—under the old ADA, the pre-ADA Amendments Act statute, there was an issue about whether or not someone would be disabled due to a physical or mental condition because they were substantially limited in the major life activity of working. Now, under the ADA Amendments Act and the EEOC's proposed regulations, working is going to be a major life activity. There's no question about that. Somewhat surprisingly, in the past the Supreme Court has expressed some question as to whether working may be a major life activity. I don't want to cast any aspersions on the Court, but I think most people would generally consider working to be a major life activity.

Now, what EEOC has done in its proposed regulation—in line with the concept of the ADA Amendments Act to make coverage under the ADA easier for persons to satisfy—is to jettison the old analysis that the EEOC had promulgated under its initial regulations, which is that someone would need to be substantially limited in a class or broad range of jobs.The courts had interpreted this standard in quite a strict fashion, such that—let's say, somebody had a physical impairment and was unable to work in certain types of laboring jobs, but could do some types of manual work. The courts basically said that person was not substantially limited in working because the limitation didn't rule out working in a class or broad range of jobs.

Now, the EEOC's proposed regulations, as I said, jettisoned that former analysis and instead of referring to a class or broad range of jobs, have come forward with a concept of type of work.If someone were limited in a type of work—let's say, being a firefighter, or working in a factory, or doing some type of laboring job, then that person would be covered under the statute as being substantially limited in working. So the type of work is going to be a looser analysis than what occurred in the past.

Also, in conformity with the ADA Amendments Act, the EEOC's proposed regulations state that in determining whether or not someone is substantially limited in a major life activity, you do the analysis without that person's use of mitigating measures, such as medication, prosthetic devices, other types of ameliorative devices that would mitigate the effects of the physical or mental impairment. An example of that might well be somebody with diabetes who is insulin dependent. Under the old statute, you'd do the analysis as to whether or not that person was substantially limited in a major life activity by taking into account the use of medication—the insulin. And for most people who are insulin-dependent diabetic, if you take insulin on a regular basis and watch what you eat and eat properly, you can function perfectly fine, and you're not going to be substantially limited in any major life activity.

Now, under the ADA Amendments Act and the EEOC's proposed regulations, you do the analysis without the medication—without the insulin. I'm not a medical doctor, but I would say that, in most cases, somebody who is an insulin-dependent diabetic and who does not take medication, that person is going to go into insulin shock, and, as a result, will be substantially limited in a major life activity, and hence will be covered under the ADA Amendments Act and the EEOC's proposed regulations.

So that's an important change to the whole ADA analysis that was first put into place by the ADA Amendments Act, and then the EEOC's regulations continue that analysis.

Berstler: Are there any particularly controversial portions of the EEOC's proposed regulations?

Mook: Yes. Due to the changed approach to the analysis of who is disabled under the ADA, the EEOC's proposed regulations set forth a list of categorical or per se disabilities. And under the EEOC's approach individuals with these types of medical impairments in all cases will satisfy the definition of disabled under the ADA because that person will be substantially limited in a major life activity when you do not consider the ameliorative impact of mitigating measures. The EEOC's categorical list of disabilities that they set forth in the regulations include the obvious ones—those persons who are blind or deaf, somebody who requires the use of a wheelchair because they've lost a limb. But, in addition, it will also include such conditions as diabetes, epilepsy, HIV positive, even though asymptomatic, because, there, the person's immune system will be substantially limited. Major depression or bipolar disorder are also listed as categorical disabilities under the ADA.

Now, at first blush you might think, what's so controversial about this? I think the reason for the controversy is that when the ADA was first enacted and EEOC promulgated its initial regulations, Congress rejected a list of disabilities when it first considered the ADA, and the EEOC didn't set forth a list of disabilities when it promulgated its regulations back in 1991. This is because the ADA was to set forth a case-by-case approach for analyzing whether or not somebody was disabled. So you took a person on an individual basis, and, therefore, had to do an individual analysis.

The EEOC decided with this change of the ADA Amendments Act—the broader interpretation of who is going to be covered under the ADA—that that didn't really make a lot of sense anymore, particularly for certain categories of impairments. That's why the EEOC came up with the list of categorical or per se disabilities. As I said, I think that's controversial because it does set forth an approach to the ADA analysis, which, as I mentioned, was rejected by Congress when it passed the original statute.

But, on the other hand, I can see that whether you're employees or employers, it makes some sense in terms of determining whether or not someone is covered under the statute, rather than having to go through an individual analysis, and coming to a result which is almost predetermined now with this broader definition of disability. The EEOC has said, look, people diagnosed with diabetes or insulin-dependent diabetes are going to be covered. Somebody who is HIV positive is going to be covered. You don't have to go through that analysis, and in many ways that may make it a lot easier for people to comply with the statute and understand their rights under the statute.The real focus of the statute now is not going to be who's covered, as it has been, but it's going to be, first, was there discrimination? And, second, was it against someone because of the physical and mental impairment, or was there a way to accommodate that person? The focus is going to be more on discrimination and accommodation rather than who's covered.

Berstler: So what is the next step in the regulatory process to finalize the EEOC's proposed rules?

Mook: The EEOC's publication of the notice of proposed rulemaking triggered the 60-day public comment period. We are within that window of public comment. That closes on November 23 of this year. Persons can submit public comments to the EEOC with respect to the proposed regulations—whether they're in favor of them, whether they disagree with them, things they think could be made better. The EEOC will assess those comments, and then come out with a final rule. I imagine that because the ADA Amendments Act took effect January 1 of this year, the EEOC is going to move quickly in promulgating the final rule.The Commission is certainly going to review the public comments. But my belief is that probably by the first quarter of next year we're going to get a final rule out of the EEOC, and if I were a betting person, I would bet the final rule is going to be much like the proposed rule.

Berstler: You talked about some of the controversial issues in there. Do you think there will be opposition raised during the public comment period on those?

Mook: As I mentioned before, the whole idea of the categorical disabilities, I think that may get some negative comment, because, again, it does represent a conceptual difference in the approach determining who is covered under the statute, although I don't think the EEOC is going to back off on that one.

I think you also may get push-back on this concept of what is “substantially limited in the major life activity of working“ and moving away from the broad class of jobs to this more focused type of work. I don't believe that has any real basis in the ADA Amendments Act. This is something the EEOC has come up with, and there may well be push-back on the type of work.

Finally, there is a proposal the EEOC has made in its regulations that would allow persons who are not disabled to challenge vision standards—uncorrected vision standards—that employers may have. That may be subject to some comment, because, again, the ADA is usually considered to be one that is enforced by persons with disabilities, not persons who don't have disabilities. There may be some criticism there. But I think at the end of the day, my bet is that the EEOC is going to come out with a final rule that is very, very similar to the proposed regs. I don't think that any court challenges to the EEOC's proposed regulations—although there may be some—are going to be particularly successful.

Berstler: Assuming these go through as expected, what impact do you see these new regulations having?

Mook: As I mentioned, the EEOC's proposed regulations follow the thrust of the ADA Amendments Act, which is to turn the focus of the ADA from an analysis of who is covered under the statute to an analysis of whether or not someone has been discriminated against because of a physical or mental impairment, and whether or not someone can be reasonably accommodated to perform the essential functions of the job. So the change now, the thrust of the ADA is going to be on someone—let's say, who may have difficulty performing a job due to a physical or mental impairment. Can that person be accommodated in order to enable that person to perform the job without causing an undue hardship to the employer? And, second of all, if an employer has certain job requirements for a job and rejects an individual because of a physical or mental impairment, are those job requirements reflective of the actual work that needs to be done? Again, the focus is going to turn from who can claim protection under the statute to who is qualified to perform the job with or without reasonable accommodation. We're going to get a lot more issues about reasonable accommodation—an interactive process to determine what constitutes a reasonable accommodation—and whether or not an employer discriminated against someone due to a disability because of prejudices or stereotypes involving individuals with disabilities.

Berstler: That is quite an interesting shift.

Mook: It's a whole new world out there in terms of the ADA. Before the focus was on who is disabled? Now the focus is going to be on who's qualified and are there reasonable accommodations available?

Berstler: Mr. Mook, thank you very much. I appreciate your time in explaining some of these issues and some of these proposals, and thank you very much for being a part of this LexisNexis podcast.

Mook: I certainly enjoyed doing the podcast, and I trust that the listeners found it to be helpful.

Publisher's Note: To purchase Jonathan Mook's pamphlet on the "ADA Amendments Act of 2008", call LexisNexis Customer Service at 1-800-833-9844. The ISBN is 978-1-4224-7105-0. Price is $96, effective through 12/31/2009.

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